By Ed Hubbard
Before the recent Iowa Straw Poll, Republican Presidential contender and former Pennsylvania Senator, Rick Santorum, paraphrased Abraham Lincoln during a debate on Fox News by saying that “the States don’t have the right to do wrong.” Santorum made this statement as a criticism of those conservatives, like Governor Rick Perry (and me), who believe in the application of Federalism and the limitations on federal responsibility confirmed in the 10thAmendment to the U.S. Constitution, even when those limitations are applied to certain moral issues that touch the very fabric of our society.
When Santorum made that statement, I was reminded of the statement made by another Republican Senator a generation ago. During the Iran-Contra Congressional hearings, Colonel Oliver North defended the Reagan administration’s decision to secretly facilitate the funding of rebels in Central America, in part, by claiming that Congress had been wrong to cut-off funding in the first place. In response, Senator Warren Rudman of New Hampshire said: “the American people have the Constitutional right to be wrong.”
As we conservatives attempt to re-establish limits on the role and responsibility of the federal government and return responsibility to individuals and states, we need to address the question posed by these apparently conflicting statements—who is right? I believe the answer is that both men are right, but Senator Santorum’s application of the principle is wrong.
I come to this answer by going back to the Declaration of Independence and the original conception of Federalism. Our Founders believed that the primary purpose of a legitimate government was to secure God’s gifts of “Life, Liberty, and the Pursuit of Happiness” to each individual. Any government—state or national—that deprived individuals of these gifts, or impaired an individual’s exercise of these basic rights without due process, committed a wrong that gave individuals the license to alter or abolish that government. When it came time to create a federal government, our Founders preserved State governments as the primary laboratories for the development of democracy by creating a unique, federal republic. The States’ role as the primary laboratories in this ongoing experiment was further secured by the 10th Amendment.
The Republican Party emerged from the great social and political upheavals in the America of the 1840s and 1850s. Central to all of the upheavals was the institution of slavery. Slavery was a wrong that deprived men and women of their God-given rights to Liberty and the Pursuit of Happiness. Slavery was a wrong that could not and should not have been condoned, and those governments that legalized it were altered and abolished through war and constitutional amendment. It was during a debate with Stephen Douglas in 1858, when talking about the wrong of slavery, that Lincoln said, “but if you admit that it [slavery] is wrong, he can not logically say that anybody has a right to do wrong.” It is that statement that Senator Santorum apparently paraphrased last week.
But the concept of liberty, arising from the gift of free will, requires that individuals, and the states they form, make choices. The very existence of the power of choice foresees the reality that some choices will be right and some choices will be wrong. In fact, the metaphor of the laboratory to describe the role of state governments implies that states will experiment with public policy choices, and the process of experimentation leads to many wrong choices during the search for a right result. Of course there are consequences that arise from our wrong choices that can be dire, and we arguably are now paying for many wrong choices that we have made and tolerated—as individuals, as communities, and through our governments—over the last 100 years, as we have confused liberty and the pursuit of happiness with license and irresponsibility. In fact, we theoretically can make enough wrong policy choices that we can destroy the fabric of our society and bankrupt our economy in the process—such is our right. But as severe as those consequences may be, liberty and federalism require that individuals and their governments have the right to be wrong—as long as our wrong choices do not deprive men and women of their God-given rights to Life, Liberty and the Pursuit of Happiness.
What our Founders hoped was that we would continue to value the development and use of responsibility, moral character and wisdom as a guard against making wrong choices; that we would make more right choices than wrong choices along the way; that those wrong choices would be relatively minor; that we would learn and grow from the experiences and consequences of our wrong choices—individually and as a people; and that we would not long tolerate either the wrong choices or the consequences arising from such choices, and eventually correct our mistakes and make right choices in the future.
So, both Senators Rudman and Santorum were right. Senator Rudman was right that, generally, we have the right to make mistakes in our public policy—moral, economic, diplomatic, and military—even to the point of being so irresponsible that we put the whole fabric of our society at risk. Senator Santorum was right, too, because when those wrongs transgress our inalienable rights, they can not be tolerated and they must trigger our right to alter or abolish the offending government—typically, and properly, by election or amendment.
So, why do I say that Senator Santorum’s application of his principle to the example of gay marriage is wrong, and Governor Perry’s position is right? It is because gay marriage, like it or not, does not deprive anyone of Life, Liberty or the Pursuit of Happiness. I happen to agree with Santorum and others who believe that licensing gay marriage is a wrong policy choice that reveals a collective collapse of responsibility, moral character, wisdom and judgment; and that such policies, if adopted throughout the country, may threaten, eventually, our social fabric. However, such policies do not threaten anyone’s inalienable rights. So, the states have the latitude in our system to experiment with this wrong policy, just as Texas had the right to adopt a constitutional amendment to prohibit such an experiment—this is the frustrating genius of the Federalism of our Founders.
One can only hope that as we conservatives win elections and re-invigorate the development and use of responsibility, moral character and wisdom through our families, our schools and our neighborhoods, that these wrong policies will be corrected. In the meantime, sadly, our citizens, and our governments must tolerate our right to be wrong if we are to preserve our Federal Republican form of government that our Founder’s designed.
Ed Hubbard is an appellate lawyer and a former candidate for office from Houston, TX. Ed has a blog and you can follow Ed on twitter, @EdHubbard.